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Cannabis legalization in New York: calm before the storm

New York is quiet for the moment but battle royale is coming in the next legislative session. People know that New York has a “medical marijuana” law but they don’t know what it means. Few people know yet that there is an opportunity to create a fully legal cannabis market like what exists in Colorado but they will know soon and then things are going to get very interesting here.

Amendment of the medical use-only legislation

It is common knowledge among people who are paying attention that the medical use-only statute, the Compassionate Care Act (the “CCA”), that Governor Cuomo forced upon New York State in June, is a dysfunctional debacle. It is so obvious a disaster that the reformers are talking about amending it in the very next legislative session.

There are many problems with the CCA. Not all of them are Cuomo’s doing, but most of them are. In the last two days of the legislative session in June he launched a savage surprise attack on the cannabis law reform movement, which by then prominently featured parents desperate to obtain lifesaving treatment for their children with severe epilepsy. The purpose of a medical use statute should to be facilitate access to cannabis by sick people, i.e. to get government out of the way. Instead, the CCA in the form into which Cuomo contorted it is a set of disincentives for anyone to enter the market: among just a few examples are increased responsibilities for physicians combined with new criminal penalties, a requirement that physicians get additional licensing from the state before they can certify patients, a plainly absurd maximum of five cultivation licenses for the whole state, and the two most mind-blowing provisions – (i) the authority of the Governor to delay issuing licenses to applicants until the Health Commissioner and Police Superintendent certify that the program can be implemented safely – with no date certain by which the licenses must be issued – and (ii) the authority of the Governor to terminate all licenses immediately upon the recommendation of the Health Commissioner or Police Superintendent. This is not a statute that can create a viable medical use market. It’s an illusion.

Emergency access – The current focus of certain activists is to force Cuomo to issue an executive order creating emergency access to cannabis for people who will not survive until the implementation process is completed. Following the death of several small children at the end of July, including one whose parents had advocated passage of the CCA, Cuomo requested that the acting Health Commissioner review the eighteen-month implementation timeline to determine whether it is possible to expedite the process of getting cannabis to children with epilepsy. In response, Assembly Member Richard Gottfried, the longstanding champion of rational cannabis policy here in New York, stated to the press that Cuomo himself had insisted on the removal of a provision for emergency access pending implementation from one of the last drafts of the legislation.

It makes sense that activists would want to focus on emergency access. However, there is a much bigger defect that must be corrected.

Advisory committee – The CCA as enacted omits what was the very best part of the proposed legislation: an advisory committee tasked with assisting the Health Commissioner in promulgating regulations. Creation of an advisory committee to assist in drafting regulations is a “best practice” in designing viable cannabis markets. There is no justification for eliminating the advisory committee from the statute.

The significance of the advisory committee is as follows. Assuming that the goal of passing a medical use statue is to get cannabis immediately into the bodies of sick people whom it helps (and not simply to provide a photo opportunity to a politician who has just rendered the legislation useless), then the most critical thing to do is to formulate good regulations as quickly as possible. The best thing to do is to create a highly transparent rulemaking process that gives an opportunity for all stakeholders to state their positions to each other as early as possible so that as many disputes can be resolved through negotiation as possible instead of through litigation. As drafted, the advisory committee would have consisted of a set of experts from different backgrounds, including law enforcement, substance abuse prevention, patient advocacy and clinicians, who would be able to create numerous other working groups. This is essentially the process followed in Colorado and Washington. (I was originally under the impression that such an advisory committee was also at work in Massachusetts; attorney Michael Cutler informed me that the MA Department of Public Health put together a “listening group” that included no patient advocates or clinicians and has “listened” to patients but not accepted their suggestions.) It’s really something of a no-brainer. Of course you would want to bring together experts who have experience in the operation of legal cannabis markets in other jurisdictions and representatives of New York stakeholders so you can get the regulations as close to perfect as possible as early in the process as possible. Yet the advisory committee did not survive Cuomo’s attack and so does not appear in the statute as enacted.

The fact that there is now a medical use statute in New York is nice but it means nothing until it is implemented and the key role of the advisory committee is to facilitate implementation.

The sponsors of the CCA are already talking about amending it in the coming legislative session. I propose that efforts to amend the CCA include the following:

– Restoring the advisory committee;– Adding a provision that individual patients and caregivers can still assert medical necessity as a defense to prosecutions for cannabis law violations even if they are not licensed by the Department of Health; – Eliminating the fixed list of conditions for which a patient can be certified to use cannabis and thereby restoring a physician’s discretion to recommend cannabis in accordance with his/her professional medical opinion;– Including an express statement as to the degree to which the CCA prevents (“preempts”) local governments from regulating the cannabis market. A provision of this type should aid tremendously in minimizing litigation.

Full legalization

The situation in New York is volatile. The CCA is untenable and the activists want vengeance. We can assume that one track in which reform efforts will proceed is amendment of the CCA, as discussed. However, the much more interesting track will be the effort to pass the Marihuana Regulation and Taxation Act (“MRTA”), the full legalization bill first introduced last year by Senator Liz Krueger and Assembly Member Crystal Peoples-Stokes.

Passage of the CCA did one thing if nothing else: the brutal power play that wrecked the bill showed how Cuomo operates. Last year, he began making ambiguous statements suggesting a new openness to permitting medical use of cannabis, refused to meet with reformers, and then blindsided them with impossible demands just days before the end of the session. His element of surprise is now gone. It’s fair to assume that Cuomo and the Senate Republicans, having opposed the CCA, will scorch the earth to prevent passage of the MRTA. (It may be that as part of the price for defeating the MRTA they will need to allow reasonable amendments to the CCA.) At the same time, it is a full legalization scheme like the MRTA, not the CCA, that has the potential to bring out mass support for reform.

Thus, there are three factors coming together as we head into the 2014-2015 legislative session: (a) the longstanding outrage over NYPD’s practice of arresting black and brown young men for possession of cannabis in amounts that were decriminalized decades ago, (b) the obvious failure of the medical use law at Cuomo’s hands and (c) the natural entrepreneurial inclination of the citizens of the capital of capitalism. I expect that these three factors are going to fuse by January 2015 and yield a new multifaceted movement reflecting the diversity of the City’s population that will demand real change. After Massachusetts passed its medical use-only law, I said that the battle front had reached the outskirts of New York. It seems to me now that the battle is about to begin within the City. We’re just in the last traces of the calm before the storm.